Lacklustre job search reduces notice period by 3 months

Unprofessional and lax communication with prospective employer not enough to mitigate damages, court says

The Ontario Superior Court of Justice has reduced the reasonable notice award an Ontario company must pay for wrongful dismissal because the worker didn’t make a serious effort to find another job for more than six months.

Grace Lee, 59, was an entry level clerk for Midland Seafoods in Toronto. Over the course of 15 years of employment with the company, Midland found Lee often made errors and acted unprofessional. However, the company didn’t give her any performance appraisals or warnings that her job performance was below par. Part of the reason for this may have been because Lee, an immigrant from Hong Kong, spoke limited English.

On Dec. 22, 2005, Midland dismissed Lee, giving the reason for her firing as a shortage of work. Lee filed a complaint for wrongful dismissal, since she hadn’t been given any indication her job was in jeopardy.

After Lee was fired, she became ill and stressed and was unable to look for work. She began faxing resumés to prospective employers in August 2006. She said she had a few unsuccessful interviews and finally registered in a provincial government job search program in April 2007.

The court rejected Midland’s argument that it had cause to fire Lee because of her incompetence. Since the company gave a shortage of work as the reason for her dismissal, the court said, it couldn’t use her job performance as cause for dismissal. The court ruled Lee was wrongfully dismissed and was entitled to 15 months’ notice because of her length of service and her age.

However, the court said Midland was not required to pay the full award of 15 months. It recognized Lee’s medical problems immediately after her dismissal and her linguistic limitations slowed down her job search, but it found she didn’t make any serious attempts over the next several months to find work and her lack of success more than a year later was a testament to that.

Some of Lee’s faxes to prospective employers didn’t go through, the court found, and her communication with employers was “generally unprofessional.” The court said this was likely because she was not “financially desperate” as she was married and had grown children.

“I accept that because of the stress, (Lee) was not capable of starting a job search before April 2006, but find her efforts (after April) were minimal and unsystematic to the point of being unreasonable.”

The court reduced the notice period Midland had to pay Lee by three months to 12 months. See Lee v. 1554478 Ontario Inc., 2008 CarswellOnt 6390 (Ont. S.C.J.).

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